After
rapid Western Expansion to the Rocky Mountains in the nineteenth century,
the United States suddenly reversed its land disposal policy by not
ceding its public lands to the states, ignoring 100 years of well-established
law and constitutional limitation. U.S. District Courts stopped using
constitutional law and started using case law, opening the law to judicial
corruption. This policy change was driven by progressive northeastern
financiers and industrialists committed to take the West for their own
benefit.

HUMAN
NATURE DICTATES that if no one is legally responsible for something,
people who benefit from using that something will tend to do whatever
is fast and cheap to get what they want. That’s true for anything.
Natural resources are no exception. Without any oversight, it was not
long before Western mining and timber companies were causing harm to
the resource base on public lands in the late 1800s. Progressives of
the day used the exaggerated writings of naturalists like John Muir
to enrage Eastern audiences to the alleged destruction. Just as they
do today, an ill-informed population demanded it be stopped.

Indeed,
something had to be done. The government could have just deeded the
land to the ranchers, timber and mining companies as a Preemption Right
as they had done east of the Rocky Mountains. However, giving the huge
areas of arid range and forest land needed to maintain economic viability
to individual
ranchers and timber companies stuck in the craw of Easterners, especially
the progressives of the day. Besides, it was argued that the preemption
and homestead laws had failed to accomplish their intended purpose.
Instead of being settled by long-term farmers and ranchers, the 160
acre homesteads were too small to be economically viable and most homesteaders
sold out to speculators.

Little
did that generation know that the seeming failure of the Preemption
and Homestead Acts would eventually provide the greatest blessing the
world has ever known as the Midwest became known as the bread basket
of the world. At the time, however, the program seemed to have failed.
That was the reason Congress revoked the preemption laws and kept the
land by passing the Forest Reserve and General Revision Acts of 1891.
In doing so, Congress violated the U.S. Constitution.

Article
IV, Section 3, paragraph 2 of the Constitution gives Congress the “power
to dispose of and make all needful rules and regulations respecting
the Territory or other property belonging to the United States.”
It dealt with territories, not states. Conversely, as discussed in Part
I, Article I, Section 8 of the Constitution severely limits the type
of land the federal government can actually own to federal highways,
the District of Columbia and, with the consent of the state legislature
of “Forts, Magazines, Arsenals, Dock-Yards,
and other needful buildings.”

Obviously,
most of the nearly 650 million acres now allegedly“owned”
by the federal government west of the Rockies do not qualify constitutionally.
True, the Treaty
of Guadalupe Hidalgo ceded the land to the U.S. government in 1948.
However, most of that land was already given by Mexican grants to settlers,
mining companies or timber companies as working land. These settlers
were protected with strong property rights language in Section VIII
of the treaty.

According
to the Equal Footing Doctrine those rights should have been kept by
the landowners when the territories became states. The U.S. government
did recognize these property rights – except when it didn’t.
The U.S. government ignored the treaty when it served the purpose of
the unscrupulous politicians, bureaucrats and industrial tycoons. The
convoluted history of what happened from 1848 through the early 1900s
is a book in itself.

The
foundational basis in deciding the legal ownership rests on two concrete
facts:1) the U.S. cannot “own” this land constitutionally,
even though it claims it does. Upon entering the United States the new
western state should have been given land not claimed by the settlers.
They were not. 2) The Treaty of Guadalupe Hidalgo which is
a constitutional instrument should have protected the settlers’
vested property rights. It did not.

On
the other side of the issue, many property rights activists claim that
since the federal government has no deed to the land, the government
therefore has no rights. That’s true to a point. However, the
Treaty of Guadalupe Hidalgo is the “deed.” The treaty gave
the U.S. certain surface and sometimes mineral rights, often on the
same land owned by the settlers. The Act of 1866 (see Part I) attempted
to sort out the split estate concept with important but somewhat mixed
results.

Congress
passed the Organic Act of 1897, establishing “science-based”
forest and range management guidelines and the use of grazing permits
and fees for the newly minted forest reserves that were created in 1891.
Scientific range management would morph in the later 1900s into the
tool by which political objectives would be reached. The Transfer
Act of 1905 created the U.S. Forest Service (USFS) within the Department
of Agriculture. The Weeks
Act (also known as the Organic Act) of 1911 allowed the USFS to
purchase and create additional National Forests in the East.

The
Taylor
Grazing Act of 1934 established prior rights for the ranchers and
eventually allowed the conversion of the old General Land Office in
the Department of Interior into the Bureau of Land Management (BLM).
Together the USFS
and BLM
today employ about 40,000 people who manage 446 million acres at a cost
of over $7
billion a year. Totally, the U.S. controls over 30 percent of the
U.S., amounting to over 50 percent of every state west of the Rocky
Mountains. (See
map)

As
will be discussed in Parts III-VI, an incredible war between the federal
government and western ranchers has been going on since 1891 mostly
under the radar; pushed and funded by powerful northeastern progressive
financiers and industrialists. What’s happening to Cliven Bundy
and other ranchers is the result of that war. Central to what is happening
today was the deliberate conversion of Constitutional law into case
law in the courts, as Bundy and hundreds of thousands of Americans have
found out the hard way. It has led to a very corrupted legal system
that tragically has no fidelity to the restrictions imposed by the U.S.
Constitution.

Constitutional
Law vs. Case Law

Although
most American’s are not even aware of it, courts no longer use
Constitutional law in deciding cases. They now use case law. That wasn’t
always the case. In fact, Constitutional law and principles were part
of the early education of children. French judge, statesman and political
writer Alexis
de Tocqueville observed a phenomenal thing in Volume II of his Democracy
in America when he visited America in 1831:

If
you question [an American] respecting his own country…he will
inform you what his rights are and by what means he exercises them….
You will find that he is familiar with the mechanism of the laws….
The American learns to know the laws by participating in the act of
legislation…. The great work of society is ever going on before
his eyes, and, as it were, under his hands. In the United States, politics
are the end and aim of education.

The
concept of “natural” sovereignty of citizens over the state
was the foundation of the U.S. Constitution and culture of the United
States. It created the “American Way” which was unique in
the history of mankind. In early America, Constitutional law and these
principles were taught in school. They were so strong and generally
known by every American that they quickly extinguished the
early attempts by progressives that the state is sovereign over the
citizen. Today, most Americans commonly believe that the federal government
is sovereign over the state, the state over the local government, and
the local government over the citizen. That is opposite of what the
U.S. Constitution actually says and will create tyranny eventually.
Americans are blind with ignorance of their heritage and liberties.
Today, not even attorneys know what the average American knew in the
1800s.

However,
a group of men who coveted power gradually introduced the statist
into the American education system. They had a goal; the same goal that
megalomaniacs have had throughout history—to rule the world.

These
would-be rulers knew they could never attain that goal as long as the
people understood the U.S. Constitution and the principles upon which
it stood. As students of history, they knew that nations ruled by the
statist model were populated by citizens who could be easily manipulated
to do what the rulers wanted. After all, socialism and communism train
people from early childhood to obey the all-knowing government—the
source of all power. Tragically, they have instilled this goal for several
generations in America’s public school system.

Widespread
constitutional understanding began to diminish in the late nineteenth
century when Christopher
Langdell was hired by Harvard University in the mid-1800s expressly
to change the direction of the highly influential Harvard Law School.
Simultaneously, progressives were first attempting to weaken the interpretation
of the U.S. Constitution to mean anything they wanted. It wouldn’t
be called a “living document” in its modern form until Oliver
Wendell Holmes spoke of the concept, if not the actual phrase.

Prior
to Langdell, law schools taught law by lecturing from the Constitution
and law itself. When Langdell became Dean of the Harvard Law School,
he taught law by reviewing previous case law. In doing so the Constitution
and the actual legislated law was ignored. By the twentieth century,
the case law approach was adopted by all U.S. law schools.
U.S. District Court cases were no longer decided by the U.S. Constitution
or the written law, but by previous cases. By incrementally making small
changes in lawsuits, each successive decision can actually reverse the
original intent of the U.S. Constitution or legislated law. It is legislation
from the bench.

No
longer were students forced to dig into constitutional wording and intent,
but instead were taught how appellate courts ruled in specific
cases. Although the District Court can use the U.S. Constitution and
the actual law, it rarely does. Often it is because the attorney representing
the rancher or citizen has never been taught real constitutional law.
Tragically, actual teaching of the Constitution in law schools is almost
nonexistent today. This is not an exaggeration. In the case of Bundy,
revisionist case law was applied by an agenda driven and arrogant BLM
to put Bundy’s fellow ranchers out of business.

At
the risk of oversimplification, if it were not for the Forest Reserve
and General Revision Acts of 1891, and revisionist case law, much, if
not most of this USFS/BLM land and its associated management costs would
now be in private or state ownership. There wouldn’t be a war
on ranchers and other natural resource users because there would have
been no power for radical environmentalists and agency bureaucrats to
create the growing evil they have inflicted over the past 60 years.

The
accusation by environmentalists and federal agencies that private owners
would have destroyed these vast tracts of lands is totally unjustified.
While it may have been true with open un-owned range, history has clearly
shown that once a resource is in private hands, management quality will
generally increase because of self-interest and the need to protect
the resource for future income. The deterioration of forests and rangelands
managed by the USFS and BLM today is a tragic testament to what happens
with public ownership subject to special interest political pressure.

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So
is Bundy right or wrong? Constitutionally, he seems to be right, but
case law says he isn’t. That may change. Bundy now has standing
in the U.S. Court of Federal Claims. This little known court is focused
on deciding constitution-based lawsuits, not administrative lawsuits.
Bundy gained standing when the BLM confiscated his cattle, destroyed
his water troughs and corrals, and then deliberately killed several
head of cattle, including two of his breeding bulls. Those are within
his century-old property rights granted by the Treaty of Guadeloupe
Hidalgo. If he can get the financial support, he may actually win on
a constitutional basis. It will be interesting. For part one click below.

Dr.
Coffman is President of Environmental Perspectives Incorporated (epi-us.com)
and CEO of Sovereignty International (sovereignty.net) in Bangor Maine.
He has had over 40 years of university teaching, research and consulting
experience in forestry and environmental sciences and now geopolitics.
He was one of four who stopped the ratification of the Convention on Biological
Diversity one hour before the Senate cloture vote. The Biodiversity Treaty
is one of the major treaties promoted by Agenda 21. He produced the acclaimed
DVD Global Warming or Global Governance (warmingdvd.com) disproving man-caused
global warming—another major theme of Agenda 21.

Dr.
Coffman’s book, Plundered,
How Progressive Ideology is Destroying America (AmericaPlundered.com)
details how the American people are being indoctrinated and bullied into
a very destructive belief system called progressivism in the same manner
described in this article. His and co-Author Kate Mathieson’s newest
book, Radical
Islam, The Plan to Take America for the Global Islamic State, provides
shocking evidence of how there is no such thing as a moderate Muslim,
and how by political correctness is blinding Americans to the real danger
that the Obama administration is putting the U.S. in by putting Islamists
in high administrative positions and to define U.S. policy. Equally shocking
is the comparison of the Bible and Qur’an. It’s a wake-up
call to America. He can be reached at 207-945-9878.